of peace. In this they were vigorously and consistently supported by the government of the United States. It was insisted that the right of an independent power to treat in times of peace with every other nation for leave to trade with its colonies and to enter into any trade whether old or new was not in itself a violation of neutrality; that one state had nothing to do with the circumstances which induced another state to open its ports; and that the trade must have a direct reference to the hostile efforts of the belligerents like dealing in contraband in order to render it a breach of neutrality." The force of the British argument in favor of the rule of the war of 1756, especially as applied to the colonial trade, seems to have appealed very strongly to many Americans. Chief Justice Marshall declined to express an opinion as to the correctness of the principle.10 Chancellor Kent thought that it might be fairly considered open to discussion, but that it was possible that if the United States should attain great maritime power and influence her people might be induced to feel more sensibly the weight of the arguments of foreign jurists. and of the policy and equity of the rule." Judge Story expressed himself as clearly satisfied that the colonial trade between the mother country and the colonies cannot be thrown open merely in time of war.12 Wheaton expresses no definite opinion as to the soundness of the principle.13 It never met with the approval of continental writers,14 Monroe to Lord Mulgrave, Sept. 23, 1805, Madison's Examination of British Doctrine, etc.; Pinckney's Memorial to Congress from the Merchants of Baltimore, 1 Wheat. (U. S.), App., p. 507; Wheaton's Life of Pinckney, p. 72; Monroe to Madison, Aug. 20, 1805; State Papers, vol. iii, 105. 10 The Commercen, 1 Wheaton (U. S.) 398. 11 Kent's Commentaries, vol. i (12th ed.), p. 84. 12 Story, Life and Letters of Joseph Story, vol. i, p. 287. 13 Wheaton, Elements Int. Law (Dana's ed.), pt. iv, chap. 3, $27. 14 Bluntschli, Le Droit Int. Codifié, §§799, 800. See Calvo, Le Droit Int., tom iv, 82410. "La règle de 1756 a été déclarée contraire aux principes internationaux par tous les publicistes modernes de quelque autoritié en Allemagne et en France, par Bluntschli, Gessner, Geffcken, Kalterborn, Perels, De Boeck, Hautefeuille, Ortolan, par Calvo, par Wheaton, etc." Bonfils, Man. de Droit Int. Pub. (4 ed. Fauchille), §1534, p. 822 (1905). "Néanmoins, cette prétention est purement arbitraire; se livrer à un commerce inoffensif qu'un des belligérants permit, n'est pas un manque d'impartialité, et c'est tout aussi peu une inmixtion dans les hostilités. C'est ce commerce des colonies qui a donné naissance à la théorie de la continuité de voyage." (Geffcken's Heffter, Le Droit Int., §166 note.) although Hübner, the especial champion of neutral rights, hesitated to claim the right to engage during a war in the colonial trade of a belligerent. "This trade," says he," "may perhaps be considered unlawful, contrary to neutrality and constituting a direct interference in the war since neutral nations are not permitted to carry it on in times of peace. It is only open to them in time of war and on account of the war. On the establishment of peace they are again excluded from it so that the commerce of neutrals with the colonies of a state at war appears to be subject to the rigorous law of war." Nevertheless he ingenuously adds, "I do not perceive why neutral states ought to refuse themselves so considerable an advantage provided they abstain from furnishing the enemy's colonies with articles prohibited in times of war.' Gessner says that it has been declared contrary to international principles by every jurist of repute in France and Germany." English jurists almost without exception asserted that the rule was an established principle of international law, and Manning considered it one of the most reasonable that a belligerent could assert.18 Hall, however, admits that it cannot be said to have been sanctioned by sufficient usage to render further debate unnecessary and that it is not easy to find a satisfactory answer to the arguments which may be urged on behalf of the right of neutrals to seize an occasion for extending their general commerce.19 The change in the colonial system and the provision of the declaration of Paris of 1856 that enemy's goods not contraband are not subject to capture under a neutral flag, has deprived the rule of the war of 1756 of much of its former importance. But no reason is apparent why it may not be revived at any time should conditions arise which in the opinion of a maritime belligerent would justify such action. All 15 De La Saisie des Batiments Neutres, tom. i, chap. 4, §6 (1759). The author of this work was sent by the Danish government to protest against the condemnation of the Dutch ships engaged in the trade with the French colonies. This book was the result of his mission. As to the author's attitude toward the claims of neutrals and belligerents, see Valin, Traité des Prises, chap. v, §5. 16 For comments upon this passage, see Phillimore, Int. Law, vol. iii, §221; Manning, Law of Nations, 199, 200. 17 Gessner, Le Droit des Neutres, pp. 266, 275. See Rivier, Principes du Droit des Gens., tom. 2, p. 411. 18 Manning, Law of Nations, p. 198. 10 Hall, Int. Law (4th ed.), p. 642. the great powers have not given their adherence to the declaration of Paris and nations still generally exclude foreign ships from participation in their coasting trade.20 The rule of maritime law, as enforced by Great Britain during the period under consideration, permitted neutrals to continue their customary trade during a war, but forbade them to engage in a trade from which they had been excluded in time of peace. She conceded to the neutral the right to import the products of the enemy's colonies into a neutral country and to export the goods of a neutral country other than contraband, to any port of the enemy which was not blockaded. The inevitable result of this condition was the importation of colonial goods into the country and their carriage from there to the belligerent. The law, according to the British view, contemplated two distinct voyages and the efforts of the American traders to engage in the forbidden commerce by means of alleged colorable importations into American ports was met by the assertion that where the importation into the neutral country was not in good faith the voyage from the colonial port to the belligerent was in law but one voyage and the ship was therefore subject to capture at any time after its departure from the neutral port. The voyage from the neutral port was not a new and distinct voyage but a continuation of the original voyage by which the goods had been imported and the entire voyage, although circuitous, was as illegal as if the neutral port had been entirely omitted. 20 "Nor is it easy," says Hall, "to see that the question has necessarily lost its importance to the degree which is sometimes thought. The more widely the doctrine is acted upon, that enemy's goods are protected by a neutral vessel the more necessary it is to determine whether it ought to be governed in a particular case by exceptional considerations." (Int. Law (4 ed.), p. 663.) "The importance of the rule-vindicated again and again, as it was by Sir Wm. Scott has been vastly decreased by the adoption in the declaration of Paris of the principle of the freedom in all cases of the neutral flag. But the neutral flag cannot save the blockade runner or the contraband trader; though the operation of the rule of 1756 is minimized, the principle is sound. Neutral trading now as always is subjected to the over-riding condition of abstention from active assistance of a belligerent; and if in the forgotten corners of the earth there be any commercial operation which is forbidden to foreigners in time of peace, these foreigners can have no sound ground for complaint should the opposing belligerent deny in time of war the privilege which the home state would, in the hour of its exigency, now accord." (Walker, Science of Int. Law, p. 261.) Other writers regard the principle as dead and buried. It has been claimed that the theory of continuous voyages was first suggested by James Stephen, in the celebrated pamphlet, entitled War in Disguise." This publication undoubtedly had some influence upon the conduct of Great Britain but it was not published until 1805, and the theory of continuous voyages was applied by Sir William Scott as early as the year 1800. It is interesting to note that it was first applied in favor of a neutral for the protection of a cargo which had gone from the neutral port of Hamburg to the belligerent port of Bordeaux and from there to the French port of San Domingo. The ship was captured on the run from Bordeaux to San Domingo and the captor contended that by touching at Bordeaux with an entry and a form of importation, the goods were incorporated into the French commerce and should thereafter be considered as being carried from one French port to another. Sir William Scott declined to take this view and said:22 I incline to think that this would be much too rigorous an application of principles rather belonging to the revenue law of this kingdom-a system of law having little in common with the general prize law of nations and that these goods are entitled to be considered as coming from Hamburg, the original port of shipment. The important and difficult question to be determined in all the cases in which the doctrine was applied was whether the importation into the neutral country had been made in good faith for the purpose of adding the goods to the common stock of the country, or was merely colorable and intended to conceal an original design of exportation to the belligerent country. "It is certainly true," said Sir William Scott," that a continued voyage from the colony of the enemy to the mother country to any other ports but those of the country to which the vessel belongs, will subject the cargo to confiscation; and the only point which the court has to decide is whether the voyage in question is to be considered as a continued voyage or not. It is a question in its nature subject to very considerable difficulties in particular cases; and one on which the court must exercise its judgment with great caution on the special circumstances which com "Leslie Stephen, Life of J. F. Stephen, p. 19. "The Immanuel, 2 C. Rob. 186, Scott's Cases, 845. See also an article in London Quarterly Rev., vol. vii, p. 6; Lyman's Diplomacy of the U. S., vol. ii, chap. 1; Wharton, Int. Law Dig., vol. iii, §388, p. 501. 13 The Maria, 5 C. Rob. 365 (1805). pose the substance of each case, and with great care not to attribute more weight to any particular fact than what it justly demands." The nature and sufficiency of the evidence required to show good faith importation into a country was first considered in the case of the Polly, an American ship seized while on the voyage from the neutral port of Marblehead to a belligerent port of Spain. The goods had been brought from the port of Havana in a Spanish colony in the same vessel and on account of the same owners and had been landed at Marblehead while the ship was undergoing repairs. The duties had been paid to the United States but the captors contended that these facts were not sufficient to break the continuity of the voyage from Havana to Spain. To this Sir William Scott replied that an American had an undoubted right to import the produce of the Spanish colonies for his own use into his own country, and after he had imported it in good faith was at liberty to carry it on to the general commerce of Europe. Answering the contention that the landing of the goods and the payment of the duties were not sufficient evidence of good faith, the learned judge said: If these criteria are not to be resorted to, I should be at a loss to know what should be the test; and I am strongly disposed to hold that it would be sufficient that the goods should be landed and the duties paid. The evidence was held sufficient to show bona fide the importation and the cargo and the vessel were restored to the owners. The American merchants understood from this decision that the landing of the goods and the payment of the duties at the neutral port would be accepted by the English prize courts as conclusive evidence that the continuity of the voyage had been broken. In reliance upon this understanding they engaged largely in the trade with the Spanish and French colonies and evidently treated the proceedings in the neutral port as a mere formality which imposed expense and trouble but did not otherwise interfere with the trade. Their point of view was radically different from that of the British government. They considered the trade as legitimate and the requirement of importation into a neutral port as a restriction wrongfully imposed by Great Britain. The British, on the other hand, regarded the trade as illegal and the attempt of the American traders to engage in it as improper and in "The Polly, 2 C. Rob. 361 (1800). |